Ask the author: Ronald Collins on Floyd Abrams and the First Amendment
on Apr 8, 2013 at 3:03 pm
The following is a series of questions posed by Kali Borkoski to Ronald Collins on the occasion of the publication of Nuanced Absolutism: Floyd Abrams and the First Amendment (Carolina Academic Press, 2013).
Question
Without giving away the entire book, what is “nuanced absolutism”?
Answer
It is a way of thinking about the First Amendment. Let me start with what it is not. It is not the kind of First Amendment absolutism championed by the likes of Justices Hugo Black and William O. Douglas. The problem with that kind of absolutism is that it is too broad and thus lacks nuance. By contrast, nuanced absolutism posits that there are certain kinds of speech, when said by certain persons in certain contexts, that should be absolutely protected absent a specific, real, and truly overriding governmental interest. And even then, the government must employ a means narrowly tailored to serve that particular interest.
Question
You describe the “tug of war” that had been going on within the law, including within the Supreme Court, between the “pragmatists” and the “absolutists” prior to Abrams’s ascendance. You then describe how Abrams’s conception of this tug of war has influenced First Amendment jurisprudence from New York Times v. Sullivan (1964) to Citizens United (2010). In your estimation, has his nuanced absolutism permanently altered the “tug of war”? Or is one side or the other bound to regain momentum as time goes on?
Answer
In the book (and in a recent article I just published in the Albany Law Review), I distinguish between the kind of nuanced absolutism championed by Mr. Abrams and that brand of limited absolutism embraced by the Roberts Court in certain cases. They are similar, but not identical. For my conceptual money, the problem with the so-called pragmatists or contextualists is that too often they “balance” away First Amendment rights and thus reduce them to insipid and harmless forms of expression. By stark contrast, I think Justice William Brennan had it right in Sullivan when he offered up the First Amendment as a robust right. True, time tends to move all of us along a spectrum. Then again, for decades now the First Amendment has been gaining doctrinal and cultural momentum, thanks in important part to the work of First Amendment lawyers such as Mr. Abrams. Of course, there are some notable and unfortunate exceptions where the Roberts Court has denigrated the high principles of free speech in a democracy.
Question
You set this book up by situating Abrams in the context of his heritage and generation. Notably, he is Jewish and was born right before the start of World War II, which also meant that he was in college during McCarthyism. From the outset, you link his concern for protecting free speech to coming of age under a specific set of cultural pressures. First of all, were these details about his life that you already knew through your friendship, or did these details emerge in the course of writing the book? Secondly, what cultural pressures do you see shaping the current generation of First Amendment lawyers?
Answer
We live in the caldron of our times. I suspect the same holds true for Mr. Abrams, though his life arc has been a long one and he continues to adapt (if that is the word) his views of the First Amendment to the cases he argues and the causes he defends. To be sure, things like Nazism and McCarthyism leave a lasting imprint on one’s life-view, and that may help to explain why Mr. Abrams has been such a staunch defender of free speech liberty. As to the details about his more personal life, I did not know much about them before venturing to write Nuanced Absolutism. I came to know a few such details as I wrote the book and made inquiries. Unlike many public figures, however, Mr. Abrams is a somewhat humble man who does not wear his more personal life on his sleeve. When it comes to such matters, there is a certain old-fashioned and guarded shyness about him . . . though he does have a great wit.
Question
You write at some length about Abrams’s thoughts on the relationship between national security and free speech, particularly after 9/11. Abrams has written that he thinks forfeitures on certain civil liberties are regrettably inevitable, but that the First Amendment should not be up for debate when considering where to compromise for the benefit of national security. Under his theory of nuanced absolutism, how far does that mandate extend? For instance, if Floyd Abrams were a Justice, how do you think he would have voted in the recently decided Clapper v. Amnesty International (2013)?
Answer
So far as I know, Mr. Abrams has not spoken much on a public level about standing, but I think it highly likely that he would have agreed with the four dissenting Justices in Clapper and that he would have viewed Justice Samuel Alito’s majority opinion as a disquieting effort to avoid dealing with a significant First Amendment claim. Of course, I am just opining here.
Question
You note that Abrams and Justice Kennedy have similar approaches to the First Amendment. They were both born in 1936. Do you think their similar views are again attributable to their generational contexts? Or is there something more to it?
Answer
I do not know enough about Justice Anthony Kennedy’s biographical make-up to render any informed and meaningful comparison here. I will note, however, that the two men were not only born in the same year, they were born in the same month – July.
Question
Throughout the book, you develop a profile of Abrams’s exceptionally bold lawyering. Towards the end you comment that students aren’t taught to be like Abrams, suggesting that “today’s legal education trades the creative and skilled insights of lawyers for a kind of passive acceptance of what judges do with such insights.” In light of this reflection, how do you counsel ambitious students of the law to comport themselves if they want to be bold lawyers?
Answer
Well, at the outset let me say this: It is not enough to be bold, you must also be bright! There is much to me said on this general score, and I chart out several of my thoughts in a forthcoming article entitled “Litigation Scholarship.” Writing Nuanced Absolutism first alerted me to the problem with much of our legal education, especially education in constitutional law. We train law students to be lawyers by teaching them to think like judges – the lion’s share of what they read is case law, and appellate law at that. This is to put the proverbial horse before the cart. It is rare for students in constitutional law to know of any of the great constitutional lawyers of the past or even the present, and rarer still for them to be exposed to any of the work those men and women prepared in the course of arguing a case. Worse still, legal scholars far too often ignore how a case was argued and how it did or did not shape the result in a given case. With Nuanced Absolutism I hope to begin to change that – but for now, it is no more than a whimsical hope.
Question
You’ve written multiple books related to the First Amendment. How does this edition fit into that growing collection? What was your goal for this book in particular?
Answer
Unlike my other books, Nuanced Absolutism was not a book I had planned to write. It began as a series of e-mails back and forth between the two of us, exchanges about Justice Holmes. And then it evolved from there into talk about Mr. Abrams’ views on the First Amendment – his views as a litigator, that is. (Think of it as two men putting their First Amendment rights to work, albeit enjoyable work.) The book was never designed to be a full biography or anything like that. All I wanted to do was to provide a sketch of Mr. Abrams’ life in the law and how that matched up with his view of the First Amendment so far as the way he argued certain cases in that area. I liked the idea of a small book, something compact that a person interested in the First Amendment could read on a train ride from, say, New York to Washington, D.C. BTW: One of the things that came out of writing my book is that it prompted Mr. Abrams to write his second book, which comes out next month and is titled Friend of the Court: On the Front Lines with the First Amendment (Yale University Press).
Question
What do you wish you could have included in the book that didn’t make it in?
Answer
Nothing substantive. Perhaps I might have included a few more photographs. That said, I would not have wanted to bulk up the book; as I indicated, I like its compact form.
Question
What’s next? Where do you go from here?
Answer
Early this summer Cambridge University Press will publish a book I co-authored with David Skover. It’s titled On Dissent: Its Meaning in America. It is unlike anything we’ve ever done in book form, a rather philosophical look at what dissent is and why we should value it. And I just sent off a book proposal having to do with Anthony Lewis, who just passed away. It is a great story and one I am working on with Hannah Bergman.
